United States District Court, D. New Mexico
MARISA ZUNIGA, on behalf of herself and all others similarly situated, Plaintiff,
ORDER DENYING MOTION TO COMPEL
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant's
motion to compel discovery responses. (Doc. 43). The parties
reached an impasse over whether Plaintiff must produce to
Defendant her retainer agreement with counsel. The Court has
considered the parties' submissions along with the record
available. Having done so, the Court denies Defendant's
original deadline for the completion of discovery was April
16, 2019. (Doc. 13). On March 15, 2019, Defendant propounded
discovery requests to Plaintiff. Included in the discovery
requests was Request for Production No. 15 (“RFP
15”), which sought “… documents or other
tangible items which refer to, concern, relate to, or reflect
on Plaintiff's adequacy to serve as representative of
other persons alleged to be similarly situated in this
litigation.” (Doc. 23). Plaintiff responded to RFP 15
without objection by response served May 12, 2019, indicating
she was not in possession of any responsive documents. (Doc.
23-1; Doc. 25).
discovery deadline was extended to May 15, 2019 by order
filed April 16, 2019 “…to give the parties
adequate time to complete the deposition of Plaintiff Marisa
Zuniga given that Ms. Zuniga is not able to appear for her
deposition previously scheduled on April 17, 2019. This
extension will not affect the remaining pre-trial
deadlines.” (Doc. 19). Plaintiff's deposition was
taken by Defendant on May 14, 2019. During the deposition,
counsel for Defendant asked Plaintiff to provide details of
the reason why she hired Plaintiff's counsel. (Doc. 23).
Defendant argues that the purpose of the aforementioned line
of questions was to elicit facts relevant to Plaintiff's
adequacy with respect to representation of the proposed
class. (Id.); see also Fed. R. Civ. P.
23(a)(4). During Plaintiff's deposition (Doc. 23-4), in
connection with Defense counsel's verbal request that
Plaintiff's counsel produce the retainer agreement
between Plaintiff and Plaintiff's counsel, counsel had
the following exchange:
Ms. Anderson: That's fine. Do you want to just produce
Mr. Zelman: There's no formal demand at this time.
Ms. Anderson: I'm making demand now.
Mr. Zelman: Oh. We'll take 30 days to respond to that
under FRCP 34, and you'll have our objections or our
Ms. Anderson: Okay. And I'll raise that issue with
respect to the other objections that you had. We probably
will end up filing a motion to compel, and then I'll just
include that in there for the convenience of the court, so he
can maybe give us a ruling ahead of time.
Mr. Zelman: Certainly. And just to be clarify, we are going
to ask for a formal written demand as a follow-up.
Ms. Anderson: That's fine. So let me back up. You said
that you wanted to help with respect to my terminology - Mr.
Zelman: Yeah, we don't call them retention agreements. We
have - it's a retainer agreement.
deadline for filing motions related to discovery was May 30,
2019. On May 30, 2019, Defendant filed its Motion to Compel
Discovery Responses (referred to as “First Motion to
Compel”). (Doc. 23). In the First Motion to Compel,
regarding RFP 15 Defendant stated that RFP 15 “asked
Plaintiff to produce any and all documents or other tangible
items which refer to, concern, relate to, or reflect on
Plaintiff's adequacy to serve as representative of other
persons alleged to be similarly situated in this
litigation.” (Id.). Defendant then goes on in
the First Motion to Compel to mention that after questioning
Plaintiff during her deposition regarding her adequacy as a
class representative, Defense Counsel asked Plaintiff's
Counsel to produce the retention agreement to Defendant, and
points out that Plaintiff's counsel neither agreed nor
declined to produce the document. (Id.). Defendant
argued that “…the scope of Plaintiff's
counsel's representation of Plaintiff is relevant to the
adequacy of Plaintiff's representation of the
class…” so that production of the retention
agreement should be compelled. (Id.).
response to the First Motion to Compel, Plaintiff argued that
the motion should be denied due to the failure of Defendant
to comply with meet and confer requirements of Fed R. Civ. P.
37(A)(1) and Local Rule 7.1, and argued that production of
the retainer agreement could not be compelled because the
retainer agreement was not relevant to whether Plaintiff was
an adequate class representative, and Defendant had not
actually requested the document be produced. (Doc. 25). In
its reply, Defendant argued that it had satisfied the
requirements of ...